Marijuana won’t be legal in Texas anytime soon

Following the legalization of retail marijuana sales in Colorado and Washington, and medical marijuana in 22 states with more to follow, marijuana legalization appears inevitable — even in “law and order” states such as Texas. The question is no longer if Texas will legalize, but when? This question has important policy implications for incarceration costs, civil liberties and medical marijuana patients. In this Baker Institute Viewpoints series, five leading experts on marijuana reform examine the question, “When will Texas legalize marijuana?”

The recent success of marijuana legalization efforts in Colorado and Washington, combined with opinion polls showing significant public support for legalizing marijuana in Texas, has generated optimism among some marijuana consumers that soon they may not have to risk arrest and prosecution to get high in the Lone Star State. This optimism is, however, misplaced. There is no way that Texas is going to follow the lead of Colorado and Washington and legalize the sale and consumption of marijuana anytime soon. This is the case for at least five interrelated reasons.

One, unlike the constitutions of Colorado and Washington, the Texas Constitution does not provide for citizen initiatives. Thus it is not possible for Texas marijuana legalization supporters to follow the model of their counterparts in those two states, where advocates gathered signatures to place the legalization reform on the ballot, and the state’s citizens determined the fate of the reform.

Two, the absence of the citizen initiative process in Texas means that a marijuana legalization bill, like any other potential new statute, must run the gauntlet of the Texas House of Representatives, the Texas Senate and the governor. Therefore, in order for a marijuana legalization bill to become law, it must have the support of at least 76 of the 150 representatives, between 16 and 21 of the 31 senators (depending on the senate rules in force), and the governor.

Three, in January 2015, there are expected to be 19 or 20 Republican senators, 92 to 98 Republican representatives, and a Republican governor. Even if the GOP experiences a few bad years at the polls, the number of Republican representatives and senators in Texas is very unlikely to drop below 80 and 17 respectively between now and 2022, mostly due to the design of the state’s legislative districts. At the same time, it is very likely that Republican Greg Abbott will be the governor between 2015 and 2019, and also likely that a Republican will reside in the governor’s mansion until at least 2023.

Four, in all but a handful of the Texas state House and Senate districts, the victor is effectively determined in the party primary in the spring, not in the general election in the fall — at least for the time being. Almost all Republican legislators are therefore far more concerned about losing the primary than losing the general election. Putting aside the reality that a large majority of these Republican legislators do not support legalization for moral and public policy reasons, even if they did, a vote in favor of legalizing marijuana would cost them far more votes in the Republican primary than it would gain them. As a result of these factors, the decision rule on this issue for almost all Republican legislators is clear: They should oppose any marijuana legalization reform bill. To vote for it could quite possibly lead to a primary defeat.

A stark reminder of the above reality can be seen in last Friday’s U.S. House vote on the Rohrabacher amendment, which would prohibit the U.S. government from interfering with the implementation of medical marijuana laws in the 22 states where they exist. The amendment passed by a 219 to 189 vote, with 49 Republicans voting yes and 17 Democrats voting no. Of the 24 Texas Republican representatives, all but one voted against the amendment. Only eccentric and erratic Steve Stockman of Friendswood (CD-36) voted for the bill — Stockman is the only one of the 24 who will not be returning to D.C. in January after unsuccessfully challenging U.S. Sen. John Cornyn this past spring.

Fifth, while there exists an outside chance that a Democrat could win the Texas gubernatorial race in 2018, virtually no one expects the Texas Legislature to turn blue between now and 2022, and quite possibly not even then. Further, those who view a Democratic takeover as a sign that the passage of marijuana legislation would be imminent should think again. First, some Democrats in competitive swing seats (which will increase in number if Texas becomes bluer) will be reluctant to support this legislation out of the fear that it will reduce their prospects of victory in the November general election. For instance, the one Texas Democrat in Congress who occupies a swing seat, Pete Gallego of Alpine (CD-23), voted against the Rohrabacher amendment. Second, a bluer Texas state legislature will be dominated by Hispanic Democrats, many of whom are relatively conservative on social issues such as drug legalization. For example, all but one of the Texas Hispanic Democrats in the U.S. Congress either voted against the Rohrabacher amendment or, in one case, was absent, perhaps strategically, at the time of the vote.

In Texas, the legalization of the sale and consumption of marijuana would require the passage of a law. At least until January 2023, and quite possibly even after that date, Republicans will possess a majority of the seats in the Texas House and Senate. And for these Republican legislators, a vote in favor of drug legalization would have a negative impact on their probability of winning in the GOP primary. Finally, if and when Democrats return to majority status in the Texas Legislature, we should not expect the Democratic delegation to be unanimously in favor of marijuana legalization, at least not in the short to medium term. In sum, similar to Texans who today want to legally play the slots, blackjack or craps, Texans who want to smoke pot legally will, at least for the next dozen years or so, need to travel to another state or country to do so.

Mark P. Jones is the Baker Institute’s fellow in political science as well as the Joseph D. Jamail Chair in Latin American Studies and the chair of the Department of Political Science at Rice University.